The Other Shoe Drops

Shorter Supreme Court Republicans: Allowing more people access to the political process without preventing other people from spending their money if they choose violates the First Amendment. Plutocrats and their agents should have the field to themselves!

This case is much, much worse than Citizens United, which at least had a reasonable basis in the First Amendment. This case strikes down a law that doesn’t prevent people from spending as much money as they want if they choose and represents a net increase in political speech. Another key excerpt from Kagan’s dissent, which immolates the majority’s reasoning and scatters the ashes in the Potomac:

This suit, in fact, may merit less attention than any challenge to a speech subsidy ever seen in this Court. In the usual First Amendment subsidy case, a person complains that the government declined to finance his speech, while bankrolling someone else’s; we must then decide whether the government differentiated between these speakers on a prohibited basis—because it preferred one speaker’s ideas to another’s. But the candidates bringing this challenge do not make that claim—because they were never denied a subsidy. Arizona, remember, offers to support any person running for state office. Petitioners here refused that assistance. So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah.

Indeed, what petitioners demand is essentially a right to quash others’ speech through the prohibition of a (universally available) subsidy program. Petitioners are able to convey their ideas without public financing—and they would prefer the field to themselves, so that they can speak free from response. To attain that goal, they ask this Court to prevent Arizona from funding electoral speech—even though that assistance is offered to every state candidate, on the same (entirely unobjectionable) basis. And this Court gladly obliges.

This one immediately leaps somewhere toward the top of the list of “Worst Roberts Court Decisions,” not an easy standard.